Rex v Vilingia [2007] TOSC 13; CR 98-2006 (17 October 2007)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

CR 98 of 2006

REX

-V-

‘OFA KI TULAKINA VILINGIA

BEFORE THE HON. CHIEF JUSTICE FORD

Counsel:
Mr Sisifa for the Crown and
Mr Fifita for the accused

Dates of hearing: 10, 13 and 21 September 2007
Dates of submissions: 3 and 10 October 2007
Date of judgment: 17 October 2007

JUDGMENT

The charges

[1] Although there was evidence of more than one act of sexual intercourse, the accused is facing one count only of rape, contrary to section 118(1)(a) of the Criminal Offences Act (Cap 18), and one count of indecent assault contrary to section is 124(1) & (2) of the Criminal Offences Act. The particulars relating to count 1 in the indictment allege that "on or about the months of November and December 2005" at Kolomotu'a, the accused carnally knew the victim against her will and, in relation to count 2, it is alleged that at the same time he indecently assaulted the victim (a girl under the age of 16) in the manner described.

[2] For his part, the 30-year-old accused denies any involvement in the acts complained of. He has raised the defence of alibi and claims that he was working on a church building construction site on an island in the Ha'apai Group of Islands at the time the offending is alleged to have occurred.

Case for the prosecution

[3] The principal witness for the prosecution was the victim who was 12 years of age at the time of the alleged offending. She told the court that her parents had separated when she was a baby and she had been fostered in the customary Tonga manner by her paternal grandparents. Her birth mother lives in Vava'u and her birth father has been living with the child in her grandparent's home.

[4] It appears that the victim's elderly foster parents both suffer from diabetes and they have each lost a leg to that disease. Sometime around June 2005 the foster parents needed to travel to America for medical treatment and they flew to Fiji with the child in order to obtain the necessary visas to enter the United States. The intention was that the three of them would travel to America together while the foster parents underwent the necessary medical treatment. The American immigration officials, however, for reasons not canvassed in evidence, would not issue the child with a visa and so the foster parents returned her to Tonga and left her in the care and custody of the foster mother's elder sister, 'Elisi, while they flew on to the United States. Although no precise dates were mentioned, it would seem that all those events happened within a relatively short space of time and 'Elisi was surprised to find yourself looking after the child.

[5] 'Elisi, who is 74 years of age, lives at Kolomotu'a in a two-storey house which apparently belongs to her brother, Manase. Manase runs a shop at the front of the property. Several of 'Elisi's grandchildren also lived in the house but the evidence relating to the occupants in the house at the time of the alleged offending was confusing. The accused is 'Elisi's eldest grandson and another grandson who also figured prominently in the case is ‘Unaloto. The complainant told the court that during the time of the alleged offending in late November and early December 2005 both the accused and ‘Unaloto were living in the house at Kolomotu'a.

[6] The complainant said in evidence that one day during the last week of November 2005 she was at home alone around 11 a.m. 'Elisi had gone into town and the other occupants of the house were also out somewhere. The complainant was asleep in the livingroom as she had been watching videos for most of the previous night. She said that the accused came into the room, picked her up and carried her to his downstairs room and laid her on his bed. She awoke as he was starting to take off her clothes. She tried to scream but the accused immediately squeezed her mouth. She said that he then removed her underwear down to her knees and proceeded to lick her vagina. After that he inserted his penis into her vagina and had intercourse. The complainant explained that she was in intense pain throughout the ordeal but he continued having intercourse and afterwards he sucked her breasts and kissed her. She said that the only time that he removed his hand from around her mouth was when he kissed her. Afterwards he got up, put on his clothes and left the room. Before he left the room he told her not tell anyone.

[7] The complainant said that she then put on her clothes and came out of the room. She thought of telling someone but she was afraid that the accused might beat her up. She said she was still in a lot of pain and was not able to walk properly. As she came out of the room she noticed that there was blood on the front of her clothes. She went and changed. Two of 'Elisi's young granddaughters arrived home and asked the complainant if she wanted to play but she turned down their invitation because of the pain she was suffering from. The complainant said that she could not see the accused around the house but he appeared later in time for a meal and after he had eaten he was gone again.

[8] The complainant told the court that a few days later the accused approached her again and took her to one of the bedrooms upstairs where intercourse took place for the second time. He told her that she must not tell anyone and that he would beat her up if she said anything. That incident happened around 1 p.m.. The complainant said that on that occasion she felt more pain around her private parts than she had on the first occasion and her vagina bled again. She thought that she should go to someone. In her words:

"I thought I should go to someone. I then thought I should leave it alone in case something should happen to me. I thought I should go and tell someone but then I thought he might kill me or something. I then got off the bed, put on my clothes and went downstairs. It was at a stage when I almost couldn't walk. I went downstairs. 'Elisi told me to go and light the fire for some food. The accused had gone to the shop. I saw him again when we ate. I did not speak to him."

[9] According to the complainant, her foster parents arrived home from the States on or about 12 December 2005 and she then returned to live with them. Between the time of the first incident in the last week in November and her returning to her foster parents' home, the complainant said that she had had sexual intercourse with the accused "less than 10 times" and on one occasion the accused younger brother, ‘Unaloto, also had intercourse with her. She told her foster mother what had happened as soon as she returned home but her foster mother did not tell her husband until sometime in March 2006. The complainant explained that the reason for this was because her foster mother thought that "something would happen" once she told her husband. After the husband was informed, a formal complaint was made to the police and two days later the complainant, upon instructions from the police, underwent a medical examination at Vaiola Hospital.

[10] In cross-examination the complainant said that she was very angry over what the accused had done to her. It was put to her that, nevertheless, between the first incident and the last incident she had not once complained to 'Elisi about what had happened. The complainant responded, " 'Elisi knew about it." She also said that she had told the police that 'Elisi knew what was happening. She was asked how 'Elisi had known about it if she (the complainant) had not told her and she replied: "when the accused came downstairs and I followed, 'Elisi should have known because she saw that I was not walking properly and I had blood on my clothes. She saw me. She did not say anything." The complainant was at that point referring to the second incident. She said that two days after that second incident ‘Unaloto had sex with her also.

[11] The Crown also called evidence from Dr Makameone Taumoepeau of Vaiola Hospital who produced a report of his findings following examination of the 12-year-old complainant in March 2006. After detailing his findings, the doctor concluded that "sexual abuse in one form or other had taken place" prior to his examination.

[12] The court did not hear from the complainant's foster parents. They apparently returned to the United States in March 2007 for further medical treatment for their diabetes and 'Elisi opined when she gave evidence that she did not think that they would ever return to Tonga. The complainant now lives with her father in her foster parents' home at Kolomotu'a.

The defence

[13] The accused had made a statement to the police following his arrest but, after a trial on the voir dire, the police documentation was ruled inadmissible because the accused had been subjected to violence in police custody. The accused, nevertheless, elected to give and call evidence. As indicated earlier, he told the court that he was not living in Tongatapu in November and December 2005 but he was working on the construction of the new Free Wesleyan Church on the island of Fonoi in Ha'apai. No notice of such alibi had been given to the prosecution within seven days of the accused's committal for trial, as is required by section 108 (2) of the Evidence Act, nor had counsel for the defence obtained leave of the court to call such evidence. Counsel explained that he had not been instructed regarding the alibi and it was apparent from his demeanour as the accused gave his evidence that that was indeed the position. The Court, therefore, allowed the evidence to be given but leave was reserved to the Crown to call evidence in rebuttal.

[14] The accused's grandmother, 'Elisi, was also called to give evidence for the defence. She described the complainant as being "disobedient" and she denied having ever seen bloodstains on her clothing. 'Elisi was asked in examination-in-chief why the complainant would have made up such a story and she replied: "I feel sorry for the girl. She was just over 10 years old yet she was making up stories only women would make up." 'Elisi was clearly upset with her sister, the child's foster mother, because several times during her evidence she made the point that after her return from the United States her sister never once spoke to her about the girl's claim of rape. In cross-examination 'Elisi admitted to beating the girl on occasions and she acknowledged that some of her grandchildren also beat the girl during the time she was living with them.

[15] Initially in her evidence, 'Elisi indicated that at the time of the alleged offending the accused was living in Tongatapu but he was staying with friends and not living at her house at Kolomotu'a. She then seemed to recall that he had gone to Fonoi in November/December 2005. In cross-examination it was put to her that the church construction at Fonoi had taken place in November/December 2004. At that point her evidence became confused and she equivocated between 2004 and 2005. I say at once that I did not find 'Elisi a credible witness. She was obviously doing all she could to protect her grandson, the accused.

Rebuttal

[16] After 'Elisi's concluded her evidence, the Crown called evidence in rebuttal of the alibi defence. The prosecutor had done his homework well. He called, Siosiua Lale Fehoko, the Minister of the Free Wesleyan Church of Tonga at Fonoi who confirmed that the new church had been constructed between 19 November and 21 December 2004. He also called evidence from the 60-year-old building contractor who had carried out the construction and another senior construction worker. The contractor recalled the accused helping out on the job but he said that that was in November/December 2004. Defence counsel had the church minister recalled and he was asked whether any work had been done on the church since its completion in December 2004 but the Minister replied in the negative.

Discussion

[17] An alibi is simply an assertion that the accused cannot be guilty of the crime charged because he was somewhere else at the time it was committed. An accused does not have to prove positively that he was somewhere else at the time. The onus is on the Crown to establish beyond reasonable doubt that the accused committed the crime and if there is a reasonable doubt about whether he was in the relevant place at the relevant time then the Crown will not have proved its case beyond a reasonable doubt.

[18] In the present case, I have been left in no doubt that the accused was not in Ha'apai at the relevant time, as he claimed. I, therefore, reject his alibi defence completely. I also reject his grandmother's initial suggestion that he was living elsewhere with friends in November/December 2005. I am satisfied that at all material times the accused was living in the Kolomotu'a house.

[19] The various elements that the Crown is required to prove beyond reasonable doubt in order to establish charges of rape and indecent assault were not in dispute. Having rejected the accused's version of events, it is, therefore, necessary for me to return to the Crown's case and be satisfied that all those necessary elements have been proven before a conviction can be entered.

[20] The most forceful submission made by defence counsel was that, although there is no requirement in the law of Tonga for corroboration of a complainant's complaint, the fact that the victim in this case had failed to make complaint to 'Elisi, her "guardian at the time", means that at common law it is "dangerous and unsafe to convict the accused."

[21] In relation to the failure of the complainant to make a complaint at the first opportunity, section 11 of the Evidence Act provides that in all criminal proceedings for rape or other sexual offences, evidence of the fact that complaint was made by the complainant shortly after the alleged offence may be given, not as evidence of the facts complained of, but as evidence of the consistency of the conduct of the complainant with her evidence given at the trial.

[22] In response, Crown counsel submitted that in all the circumstances of the case, particularly given the fact that the victim was only 12 years old, living in a strange and seemingly unsympathetic environment, it was perfectly understandable that she would not want to complain to her assailant's grandmother (Crown counsel incorrectly referred to 'Elisi throughout his submissions as the accused's mother).

[23] The common law presumption relating to recent complaint was referred to in the High Court of Australia decision of Graham v The Queen (1998) 195 CLR. The Court said at [12]:

"The relevance, at common law, of evidence of recent complaint in cases involving sexual offences was recently explained in Suresh v The Queen [1998] HCA 23; (1998) 72 ALJR 769. As there explained, the evidence is not evidence of the offence charged, but is admissible because of the general assumption that the victims of sexual offences will complain at the first reasonable opportunity and that, if complaint is not then make, a subsequent complaint is likely to be false."

[24] In an earlier High Court decision M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 514 Gaudron J observed that the presumption was an assumption of fact that had embedded in it a questionable suggestion, namely, that people are more likely to lie about sexual offences than about other matters. In that case the appellant had been convicted on various sexual charges involving his 13-year-old daughter. There was an issue over the delay in complaint as the evidence showed that the complainant had not made immediate complaint to her mother, stepmother or any other adult until a month after the event. In reference to the application of the common law presumption, Gaudron J said at 515:

"There is one class of case which cannot be approached on the basis of (the presumption), namely, cases of sexual assault of a child by a person who has the child's trust and confidence. In cases of that kind, the victim may be reluctant to resist the offender or to protest and, on that account, reluctant also to complain. As well, a child in that situation may be reluctant to complain from fear that he or she will not be believed, from fear of punishment or, even, fear of rejection by the offender."

[25] Although the circumstances are different, I accept that the substance of those observations has equal application to the facts of the present case. The presumption that the victims of sexual offences will complain at the first opportunity needs to be approached with a good deal of circumspection. Given the cultural sensitivities in this jurisdiction generally relating to sexual matters, this Court should be cautious about stereotyping sexual complainants, particularly children, in such a way.

[26] Despite her youth, I found the complainant a convincing and credible witness and I am satisfied beyond reasonable doubt that the accused did commit the offences of which he is charged. He is convicted accordingly.

NUKU'ALOFA: 17 OCTOBER 2007

CHIEF JUSTICE